Our public institutions need fair use laws

We need reform to free libraries, archives and universities from unnecessary red tape.

By Kathy Bowrey

7 June 2016 — 9:22pm

Recommendations by the ALRC and the Productivity Commission to reform existing fair dealing laws – to replace the copyright "fair dealing" exceptions with "fair use" – has come about because reform is needed so our libraries, researchers, teachers and an array of established creative practices can be supported.

This is especially important in a climate of reduced public expenditure to support the work of Australian public institutions. Existing commercial practices would, on the whole, not be affected. Rather, the reform is mainly about allowing the right questions to be asked about the use of material.

Copyright exceptions are special rules that support freedom of speech and educational objectives by requiring legal consideration about who is using a copyright work and why they are using it. The difference between fair dealing and fair use is easily overstated. Fair use has British legal origins and Australia retained fair use under our first Copyright Act 1905 (Cth). This act was replaced by British legislation in 1911 that introduced the explicit idea of copyright exceptions and "fair dealing" into the statute for the first time, but this was not intended to change the conceptual foundation of the existing test of infringement. Over time, however, the statutory change has affected legal interpretation of users' rights.

The current proposals to adopt "fair use" require an explicit consideration of the fairness of the taking of another's work. The "fairness factors" include assessment of:

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Under the reforms, the "fairness" of using part of a work would be explicitly considered.Credit:iStock

The purpose and character of the use;

The nature of the copyright material;

The amount and substantiality of the part used; and

The effect of the use upon the potential market for, or value of, the copyright material.

The ALRC also recommended inclusion of a non-exhaustive list of illustrative uses or purposes that may qualify as fair use. This is an important reform because existing fair dealing case law has failed to develop any consistent approach to the criteria for assessing "fairness".

Fair use is also more open-ended. It should mean that to assess if a particular practice is allowed we don't start interpretation with a dictionary definition to work out what is meant by the words research or study; criticism or review; parody or satire; and reporting news.

There are also reams of highly technical bespoke copyright exceptions littered across the Copyright Act that have developed over decades to support public institutions: libraries, archives, educational users and other 'special cases'. These exceptions have become so highly technical and confusing that we don't try to teach them in law schools.

Fair use would greatly simplify compliance so that professionals can more efficiently perform their public functions. It is an enormous waste of public resources to tie up our libraries, archives and universities in this kind of red tape. Fair use does not give the go-ahead for libraries or universities to start providing material for free on a grander scale.

These institutions are already buying the works, subscribing to the publisher databases, cataloguing and indexing the material for posterity, in accordance with their public mandate. It just frees up their ability to get on with it.

The problem most artists face is not with the letter of the law, but with the lack of financial resources to pursue infringers. It is easy to whip up a moral panic in the arts community over fair use because copyright law is already a rather blunt tool to support their practices. But it is not the case that substantial quotations of works would be treated all that differently under fair use. Arguably requiring an explicit consideration of fairness, which would bring to light the motivation for the use of another's work, improves understanding of diverse practices within artistic communities. Blatant rip-offs and commercial appropriations will stumble in moving past the test of fairness, as they would under the current law.

Australia's great public institutions – our libraries, museums, art galleries, broadcasters and universities – were once much better supported by a raft of cultural policies. We have had special copyright rules designed to support the works of libraries and art galleries since the first colonial Victorian Copyright Act in 1869. However the framework we now have is in serious need of updating. Copyright reform does not work against the interest of Australian authors and artists; retaining the status quo only makes things harder for our public institutions to function on top of other assaults on the sector.

Dr Kathy Bowrey is professor in the faculty of law at the University of NSW. Her expertise primarily relates to intellectual property, media and information technology regulation.

Fair use does not give the go-ahead for libraries or universities to start providing material for free on a grander scale.